Summary

Project title: DETOUR - Towards Pre-trial Detention as Ultima Ratio
Project period: 01 January 2016 – 31 December 2017
Funded by: Justice Programme of the European Commission, supported by the Austrian Ministry of Justice

In many European countries, a high number of people are held in pre-trial detention. Pre-trial detention primarily serves procedural purposes: to prevent a suspect from absconding, or from tampering with evidence. The justice system must have a way of ensuing that those accused turn up to their trial and/or sentencing hearing. Judicial systems quite often use detention as the easiest way of achieving this end. This is contrary to the principle that, with respect to the fundamental right to liberty and the presumption of innocence, deprivation of liberty must only be applied when less severe mechanisms are insufficient to exercise control over the suspect and to guarantee his or her presence at trial (with detention as the ultima ratio). Generally, the principle of subsidiarity must be applied in such a way that the suspect or accused may await the trial process in conditions of unrestricted liberty or, where justified, under specified restrictions. In prisons, remand detainees often suffer from worse conditions than sentenced prisoners. The European Committee for the Prevention of Torture has called this a pan-European problem. Another common problem is the often observed excessive length of pre-trial detention. It must also be noted that in many European jurisdictions there is a high proportion of foreigners in pre-trial detention. The Framework Decision 2009/829 of the 'European supervision order' (ESO) could be a useful tool in this respect, but has not yet been fully implemented.

The use of alternatives to pre-trial detention, however, is not without difficulties for both suspects and practitioners. In the countries represented in the project, the availability of alternatives to pre-trial detention and their use vary considerably. These alternatives may take less invasive forms, such as release on recognizance with some obligations attached, including, for example, reporting regularly to the authorities. But they also may take the form of curfew, electronically monitored curfew, other forms of (police) supervision, or drug treatment. A fundamental problem that may arise from the use of alternatives to pre-trial detention is the potential for net-widening. There can also be a “hidden agenda” of e.g. punitive or coercive aims, which may go beyond the legitimate goals of the restriction. Further problems are the possible exclusion of foreigners or homeless people from such alternatives. 

This project aims at exploring and analysing pre-trial detention practice and especially different ways of reducing the use of pre-trial detention in seven European jurisdictions (Austria, Germany, Romania, Belgium, Lithuania, Ireland and the Netherlands). It is, on the one hand, focused on the human rights situation of the suspects who, in principle, should benefit from the presumption of innocence. On the other hand it addresses the views and needs of the judiciary who also depend on available alternatives, and also face other problems and obstacles with respect to the avoidance of pre-trial detention. Increasingly, and this will be another focus, cross-border cases need to be solved within the EU, for instance using the European Supervision order. The project aims at increasing mutual knowledge about and, where justified, trust in other jurisdictions within the EU. Central to all project activities, although not restricted to them, are judges and prosecutors, because they are the actors who make decisions on the basis of the law, but are also dependent on and influenced by certain conditions. All in all, the project is about learning from and with each other and contributing thereby to developments fostering the avoidance of pre-trial detention.